Top court ruling poses obstacle to Mashpee Wampanoag casino efforts

Tuesday

Feb 24, 2009 at 3:22 PM

PROVIDENCE, R.I. — The U.S. Supreme Court today limited the federal government’s authority to hold land in trust for Indian tribes, a victory for Rhode Island and other states seeking to impose local laws and control over development on Indian lands.

RAY HENRY

PROVIDENCE, R.I. — The U.S. Supreme Court today limited the federal government’s authority to hold land in trust for Indian tribes, a victory for Rhode Island and other states seeking to impose local laws and control over development on Indian lands.

The court’s ruling applies to tribes recognized by the federal government after the 1934 Indian Reorganization Act.

The U.S. government argued that the law allows it to take land into trust for tribes regardless of when they were recognized, but Justice Clarence Thomas said in his majority opinion that the law “unambiguously refers to those tribes that were under the federal jurisdiction” when it was enacted.

It remains unclear how many tribes could be affected by today’s ruling. Lawyers for Rhode Island believe several hundred tribes recognized after 1934 might now be unable to place new land into a federal trust without specific permission from Congress. Richard Guest, an attorney for the Native American Rights Fund, said dozens of tribes may be affected.

In neighboring Massachusetts, the Supreme Court ruling effectively blocks an effort by the newly recognized Mashpee Wampanoag Tribe to open a casino in Middleborough under a federal law that permits tribes to enter the gaming business, said attorney Dennis Whittlesey, who helped town officials negotiate a deal with the tribe on gambling.

“It is a showstopper,” said Whittlesey, who added that Congress could still amend the disputed statute for the benefit of tribes like the Mashpee Wampanoag and Narragansett.

The ruling comes in a case involving the Rhode Island-based Narragansett Indian Tribe and a 31-acre tract of land that the tribe purchased in rural Charlestown, about 40 miles south of Providence.

At issue was whether the land should be subject to state law, including a prohibition on casino gambling, or whether the parcel should be governed by tribal and federal law.

“The Narragansett Indian Tribe is not entitled to special treatment on land that it owns,” Charlestown’s attorney, Joseph Larisa Jr., said in a written statement. He added that the ruling prevents the tribe from creating tax-free smoke shops or an Indian casino unless the citizens vote to approve gambling.

Jack Killoy, an attorney for the tribe, said he was disappointed that the ruling could cast a legal shadow over the land holdings for tribes like the Narragansetts that were federally recognized after 1934.

“The court has narrowly construed a statute intended to benefit all Native American tribes and reversed 75 years of federal Indian policy,” Killoy said. “It affects so many tribes throughout the country that Congress is going to need to address this.”

The dispute dates to 1991, when the Narragansetts purchased the land for economic development and to build an elderly housing complex, which Killoy said the tribe hopes to complete.

State officials feared the tribe would create a tax-free zone that might undercut local businesses or build a casino. Lawyers for the state argued that the tribe cannot remove its land from state control using the Indian Reorganization Act because the Narragansett tribe was not recognized by the U.S. government when the act passed 75 years ago.

In the state’s view, Congress passed the law to help tribes that lost millions of acres during a forced assimilation campaign that began in 1887, a timeline that made the Narragansetts ineligible.

But Rhode Island lawmakers disbanded the Narragansetts in 1880, and the tribe sold off nearly all its remaining land — 927 acres — soon afterward to the state government for $5,000. The federal government formally recognized the tribe in 1983.

Indian rights advocates said Congress intended for the law to set a new standard for future relationships with all tribes, regardless of when they were recognized.

The 1st U.S. Circuit Court of Appeals in Boston rejected the state’s argument that Rhode Island should be the applicable authority. The high court reversed the appellate ruling.

Meanwhile, lingering disputes over what law governs Narragansett land have turned violent. Chief Sachem Matthew Thomas, leader of the Narragansetts, was sentenced in June to 150 hours of community service for scuffling with State Police during a 2003 raid on a tribal shop that was not collecting state cigarette taxes.

Justice Stephen Breyer, who joined the majority opinion, indicated that it is possible that tribes not recognized by the federal government before the 1934 law might still have been under federal jurisdiction “even though the federal government did not believe so at the time.” As an example, Breyer said, the government has acknowledged that some tribes were mistakenly left off a list the Interior Department compiled following the law’s enactment.

But Breyer said he did not foresee that possibility for the Narragansetts.

Only Justice John Paul Stevens fully dissented from Thomas’ opinion, which he called a “cramped reading” of the 1934 law.

Gov. Don Carcieri and Attorney General Patrick Lynch could not immediately comment on the ruling, their spokespeople said.